Posted
by
kdawson
on Sunday May 02, 2010 @08:13AM
from the read-only-culture dept.

jrepin writes in to recommend a piece by Eugenia from OSNews, which explores the depths of the MPEG-LA's lock on video. One part of the problem is that almost all video cameras, including ones that cost more than $12,000, declare in their manuals that they are for "personal use and non-commercial" purposes only. "We've all heard how the h.264 is rolled over on patents and royalties. Even with these facts, I kept supporting the best-performing 'delivery' codec in the market, which is h.264. 'Let the best win,' I kept thinking. But it wasn't until very recently when I was made aware that the problem is way deeper. No, my friends. It's not just a matter of just 'picking Theora' to export a video to Youtube and be clear of any litigation. MPEG-LA's trick runs way deeper!""

How does that work? If a camera says it's for non-commercial use only, do I need to sign a contract that says I won't use it for commercial films? What if I sell my camera to someone else? Does the contract require me to sign over that contract to the buyer? If I fail to do so, what can they do about the buyer using the camera for commercial purposes?

And I'm also pretty sure the MPEG-LA doesn't want to see the issue end up in court, because they'd probably lose.

Unless you're a lawyer, I don't think you're qualified to make that kind of comment. Actually, I believe even if you *are* a lawyer you aren't qualified to make that kind of comment, the laws that could potentially come into effect are many and fairly complex so I don't think it's as clear-cut as you make it out to be, at least not for the infringing side.

What license agreement? The one in the manual? You don't have to agree to that. You aren't forced to sign anything. A lot of newer cameras don't even come with the manual in the box for fucks sake. How is that even enforceable from a legal perspective? This has less clout than a clickable EULA, and people expect it to hold up in court. Yeah. Good luck with that one. That being said, I read TFA, and I agree that we have certainly entered a legal quagmire, but how much of this stuff will hold up in court is truly questionable. If anything the theora codec developers have far more to worry about than the average consumer/company posting videos.

IANAL, but I believe you can use the actual, physical device to record any kind of movie but then if you distribute it commercially you become liable for patent infringement, as the camera maker only paid for a non-commercial h.264 license rather than the 'full' one.

If that's the case, then in theory it'd be possible to record the movie, transcode it to a Free format such as Theora or a closed one you *do* own a commercial license for, redistribute *that* file instead, and be legally in the clear. But as I said, IANAL, this is not legal advice and all that crap.

That note in the manual won't hold up in court, but the licensing demands will. What this means is that the MPEG-LA will get your money and then you can try and get your money back from the manufacturer of the camera for not mentioning this unexpected limitation prior to the purchase (i.e. selling you a device which is not fit for the naturally intended purpose.) You'll probably get the price of the camera back, but not your "damages".

I recently scoffed at the 720p MJPEG codec used by my shiny new Pentax Optio camera.

Who knew that its ancient and inefficient CODEC is its saving grace when it comes to the topic of TFA.

But seriously, this is a case of Moores law making old stuff (mjpeg) work even for modern resolutions. I lacks the elegance of modern compression, but as long as the camera has fast/huge storage and fast raw processing power, we can use it and probably be happy with it too. The place where the fancy compression is always going to be key is distribution where the bandwidth is limited, be it spinning off a disk or streaming off the net.

MPEG-LA has insinuated in the past that they own so many patents around mpeg2 and h.264, that is simply not possible to build a video codec that it doesn't infringe on their patents.

This is blatant rubbish. A full MPEG 1 implementation can be implemented since all patents relating to that have expired. A number of the MPEG2 patents have expired so it may be possible to extend this using those. So that gives at the very least some basic space conversion and final compression algorithms that can be used. Even a few of the MPEG 2 patents have expired. We're not looking at a particularly modern CODEC yet, but this should at least give us better quality than an MJPEG stream.

The problem is that regardless of whether you agreed to anything, you never got a "commercial" license in the first place, so you can get sued. The manual just *informs* you of the fact that what you bought is a non-commercial license. That's very different from EULAs that take rights away from you. In this case, they just inform you that you never got the rights in the first place.

The other thing is, in this specific case, H.264 probably infringes on some of On2's patents for VP3.

Google now owns On2, and therefore owns the VP3 patents.

Theora is based on VP3, with an unlimited royalty-free license to the VP3 patents.

Google is financially supporting TheorARM, which is meant to be a high-performance Theora decoder for ARM CPUs.

Google doesn't have very many patents, and they have a lot of money, to buy lawyers.

Google is probably the best company to push the button, and start Global Thermonuclear Patent War - they've got the least to lose (they can't lose many patents, not having many,) and they've got some of the most to gain.

All it takes is suing MPEG LA, and not going for just royalties like a patent troll would, but going for the destruction of MPEG LA. Then everyone starts suing everyone, and we get Mutually Assured Patent Destruction. Which is good for everyone.

That's kind of vague. If you read the CNET article you can see that the MPEG-LA licensing guy says "the only person who needs to pay is the seller of the video". Nothing is said about the "user" of the video, whoever that is, presumably the viewer. The reason the cameras say non-commercial use only is because if you were using it commercially, you'd probably be selling the video and at that point you need a license.

Now the real question is, how should h264 be licensed? I don't know. Off-hand, charging a fairly low rate (2c per disc or lower) for commercial usage and not charging for non-commercial actually seems quite reasonable to me. I read that you need to also pay licensing fees if you want to implement it, which seems like double-dipping to me, but I'm not an expert so I won't judge. Suffice it to say that h264 is a very sophisticated technology that is the product of many contributions by many people and companies over a long period of time. We can debate whether software should be patentable all day, but video codecs are a pretty clear example of a piece of software that are very expensive to develop and probably do need some kind of patent protection.

Who is smart enough to determine patent eligibility? And if anyone is smart enough to do so, would they be working for the patent office or gaming the system for their own benefit?

I'm not sure that anyone is smart enough to consistently draw the line between patentable or not. I think that is one of the problems that makes patents so difficult to manage to the point where they stifle innovation rather than encourage it.

With current technology, disclosure of patents is not such a big deal anymore. Reverse engineering is much easier with the tech we have now, and the idea can be communicated to the world very easily. It's gotten to the point where centralized design and innovation has become more expensive than networked collaboration. That makes patents obsolete. And without patents, manufacturers will be innovating just to stay ahead of their competition rather than resting on patents.

Yes but they already been granted a license for non-commercial use. If it not distributed in the MPEG format, is it a commercial use? The commercial use is the Ogg Theora format in this case, isn't it?

How does it make any sense? Isn't it the camera manufacture that needs a commercial license to use their codec in their commercial product, i.e. the camera? Without a codec the camera can't do anything, it is not useful. It's like a calculator producer ships his calculators with a software but the customer don't get a commercial license with it, so he can't use the calculator in his business.

I'm using the camera not their codec. The camera gives me a video, which I can decode to watch, or decode to raw data and encode it to any other video codec. And a license to decode I'll get with the software that I buy. How can they restrict what I can do without me ever using their codec to encode anything?

With disk space the way it is, (i.e. *cheap*) I don't know why people would even want a camera that records in a format that uses interframe compression.

I got a camera not long ago that still used DV tapes for this very reason: hdd and dvd all seemed to use codecs that would make editing frustrating, even though they had higher byte-capacity (and therefore vastly higher storage capacity due to the higher compression...)

This is why the BBC came up with Dirac. Even for them to pay developers to come up with a new codec, they still save tens of millions of pounds each year by not having to pay MPEG-LA to use their codecs. The BBC then made it open source, they made their savings internally so they have more to gain from the FOSS communities.

Dirac hasn't taken off on the web yet, main reason IMHO is because it hasn't been check out against patents in the USA, and it can get a little more CPU hungry than h264. I know this is one reason why Mozilla haven't used Dirac as a codec in their browsers. Saying that, you can use the open source Schroedinger Dirac encoder that uses CUDA, less CPU cycles used than encoding with free h264 encoders.

If Eli Whitney's cotton gin were still covered by patents, the business model would probably be to license based on the bales of cotton ginned in addition to the fee for each machine - in this way a self contained commune would still have to pay royalties based on how much they used the machine. The value of the cotton ginned would be a poor metric since the user could sell the cotton at a loss, or the cotton could end up in hundred dollar bills. If I chose to put my gin on display in a museum or a gin repair school, would Whitney be able to impose a new previously undisclosed licensing fee based on the revenues of my museum or school?

Photography and movie making are artistic endeavors; the contribution of the codec toward that end is not significant and license fees should not be based on the value of the product, but on the number of frames or length of the film or similar measure. Would anyone think it appropriate for the manufacturer of film or paints to make money from the photographs or paintings created by others? How would the manufacturer deal with collecting on second sale?

Since the consumer is obligated to meet the terms imposed in a license agreement, isn't the manufacturer obligated to disclose the full terms? Failure to disclose fees outside of the original terms strike me as unconscionable, and basing those fees on the commercial value of the end product doubly so.

One question for the lawyers out there. If the license agreement is between Canon and me, and I violate that agreement, how does MPEG-LA have any standing to negotiate with me for fees?

Yes this was hashed out in court years ago. The analogy I read was a lathe maker wants royalties on everything made using the lathe he sold. Courts ruled you couldn't force these kinds of restrictions on people. This even extended to runtime libraries that would need to be included with the compiled code. Didn't work then won't work now.

Lawyers might not be the problem, but the problems are lawyers. Think about it.

Who comes up with the bizarre contracts, cowardly EULAs, and wacky tort ideas? Lawyers. Who decides that this nonsense is valid law? Usually judges, almost all of whom are lawyers. Who writes the law in the first place? Politicians, a great many of whom are lawyers. Who decides who is eligible to run? Sometimes lawyers (with the implicit threat of court battles).

There are many great lawyers out there, fighting for freedom and justice on the small (but very meaningful) scale. We need more of such people. Regardless, there is a particular variety that is causing mayhem in our political system. We really need to find a way to --err... dissuade them.

Why do you want to become a lawyer? Why don't you do something to help humanity, rather then being a parasite.

. It's horrible, but it's not the lawyers' faults. The lawyers are just doing their jobs - advocating for their clients. It's their clients that are assholes and legislators that are idiots.

So you are trying to redirect the blame onto another body? Isn't saying that the lawyers are just doing their job, kind of like saying that drug dealers are just doing their job, and providing a service. When a lawyer uses tricks of the legal system to absolve a client that she KNOWS to be guilty, how can it be said that the lawyer is not supporting the side of evil.

When I can hear adds for lawyers trying to profit of mesothelioma 20 + years after asbestos has been used in construction, how can you support lawyers.

Just because it is not against the law, does not make something right. You say that the legislatures are idiots because they do not understand the intricacies of the laws they write. Well then that make the public doubly idiotic. So the only people who are smart enough to understand the laws, and hence participate, and be full fledged members of this democracy are lawyers. What ever happened to a government by the people for the people.

-Democracy is a suitable form of government only for a just and moral populace. Unfortunately morals and good fashioned horse sense are being replaced by the absolute rule of law. Laws written largely by people attempting to profit of the ignorance of the populace of those laws.

I agree it remains to be seen as to what degree this will or will not be enforceable. This is a sort of reverse tivoization though if it works. Sure we sold you the hardware and you have the right to do anything you want with it; never mind we control the software and the hardware is worse than useless with out it.

I can see how the camera manufacturer may have a claim against the purchaser as the purchase of a camera can be taken to be acceptance of the license agreement for the software in the camera. ANAL, but I don't see how the MPEG-LA has any claim as they were not party to the sale.

I don't really like software patents but I can accept that the work that went into developing algorithms as complex as video codecs deserves some protection. The problem here is that the MPEG-LA is not just claiming the right to fees from software developers who want to implement their algorithm, they're claiming the right to fees from end users using the software in the process of creating video, apparently even if the final saleable from of the video doesn't employee their codecs. That's like a pen manufacturer claiming royalties on a book because the author used one of their pens to write the first draft.

In the original finding (northern Cali), it was held that exhaustion applied because the product had no substantial use beyond an infringing use. The SCOTUS affirmed that. That seems to apply also to a camcorder; it has no substantial use other than to record and play back video, which in absence of a license, would be infringing.